Framework puts Indigenous nations in a cage

Reforms must deal with land issues, say Gina Starblanket and Joyce Green.

The Trudeau government is committed to table legislation on a Recognition of Rights Framework for Indigenous rights this fall. While not yet finalized, the initial drafts aren’t encouraging.

Beware of federal politicians bearing beads and trinkets. This framework is not emancipatory, and despite effusive news releases from the prime minister, has nothing to do with reconciliation.

The feds are proposing a framework that functions like a cage, containing Indigenous nations and governments within a legal apparatus that assumes all sovereignty and jurisdiction belong to the federal and provincial governments.

The cage provides Indigenous nations with little more than space to administer federally approved governance within legislated boundaries. No land commitments accompany the framework, and its principles fall far below the floor set by Canadian constitutional law, Indigenous laws, and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

The legislation, according to the justice minister in her speech to the Business Council of British Columbia in April, is intended to provide “certainty.”

“Certainty” means clarity and predictability for non-Indigenous corporate investment interests. And while the government’s language suggests self-determination is a desirable objective to be secured through recognition of rights, there is nothing proposed that recognizes or facilitates self-determination, a fundamental right recognized at international law.

The legislated governance approach has been floated through a variety of initiatives by successive governments since 1982. All proposed a delegated subordinate municipal-style framework to replace the Indian Act. All have been largely rejected by First Nations.

Yet the new relationship reads like an updated version of the Indian Act; it amounts to self-administration, and leaves no doubt that the federal and provincial governments don’t plan on sharing jurisdictional power or tax and resource wealth.

The feds are holding consultations, but are they listening? The “What We Heard” file is largely cherry-picked and focused on specific issues — funding, housing, health, jobs, education and so on. These are not trivial matters, but all relate to larger systemic and structural issues that are never addressed.

One overarching theme missing, despite being raised as a primary concern by critics and supporters of the framework alike, is the allimportant topic of land.

It’s the heart of Indigenous laws, governance, culture and relationships, to which we hold both rights and responsibilities. It’s the foundation of the colonial impulse and the source of wealth of Project Canada. It’s the key to our pasts and our futures. And land is precisely what the feds and provinces want, but never want to talk about.

That discussion would include jurisdiction, relationships between provincial, federal and Indigenous governments, treaties, tax room, and revenue-sharing. Continuous evasion of this subject has created the current impasse, with questions of title and jurisdiction at the centre of every major conflict in Indigenous-Canadian relations past, present, and evidently, future.

The Supreme Court of Canada decided in 2014 in Tsilhqot’in that there are cases where Aboriginal title has never been extinguished, and thus jurisdiction and title to the land remain with the relevant Indigenous nation. The UNDRIP unequivocally states that Indigenous peoples retain rights to unceded land and resources.

The UNDRIP recognizes the Indigenous right of “free, prior and informed consent” over Indigenous lands.

Indigenous peoples aren’t going to let their inherent rights and jurisdiction be legislated into oblivion. Canada’s own laws impose state obligations to redress land theft.

Efforts to address Indigenous-state relations without adhering to the limits that Indigenous rights place upon federal and provincial actions, and without engaging in the restructuring required for a return of land and jurisdiction, are doomed to fail, no matter how many people are “consulted.”